On 3 April 2019, the Commission launched this infringement procedure on the grounds that the new disciplinary regime undermines the judicial independence of Polish judges and does not ensure the necessary guarantees to protect judges from political control, as required by the Court of Justice of the EU.
Specifically, the Polish law allows ordinary court judges to be subjected to disciplinary investigations, procedures and sanctions on the basis of the content of their judicial decisions, including the exercise of their right under Article 267 of the Treaty on the Functioning of the European Union (TFEU) to request preliminary rulings from the Court of Justice of the EU. Moreover, the new disciplinary regime does not guarantee the independence and impartiality of the Disciplinary Chamber of the Supreme Court, which is composed solely of judges selected by the National Council for the Judiciary, which is itself politically appointed by the Polish Parliament (Sejm). Furthermore, the new disciplinary regime does not ensure that a court ‘established by law’ will decide in the first instance on disciplinary proceedings against ordinary court judges. Instead, it empowers the President of the Disciplinary Chamber to determine, on an ad-hoc basis and with an almost unfettered discretion, the disciplinary court of first instance to hear a given case brought against an ordinary court judge. The new regime no longer guarantees that cases are processed within a reasonable timeframe, allowing the Minister of Justice to keep charges pending over ordinary court judges through disciplinary officers appointed by the Minister. The new regime also affects ordinary court judges’ right of defence. In short, judges are not insulated from political control and thus judicial independence is violated.
On 3 April 2019, the Commission addressed a letter of formal notice to Poland. Following a thorough analysis of the response received, the Commission concluded that the response did not alleviate the legal concerns, and took the next step in the process, sending a reasoned opinion on 17 July 2019. In its latest response, Poland again failed to address the Commission’s concerns.
The Commission has therefore decided to refer Poland to the Court of Justice of the EU. In view of the potential impact of the disciplinary regime on judicial independence, a request for an expedited procedure is warranted, to obtain a final judgment as soon as possible. This would also be in line with the Commission’s Communication of 17 July 2019 entitled “Strengthening the rule of law within the Union – A blueprint for action”, which underlines that building on its existing approach to enforcement and on developing case law of the Court of Justice of the EU, the Commission will pursue a strategic approach to infringement proceedings related to the rule of law, requesting expedited proceedings and interim measures whenever necessary.